S. B. v. Texas Department of Family and Protective Services

S. B., Appellantv.Texas Department of Family and Protective Services, Appellee

FROM
THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL
DISTRICT NO. 16-0065-CPS425, HONORABLE BETSY F. LAMBETH,
JUDGE PRESIDING

Before
Justices Puryear, Field, and Bourland

MEMORANDUM OPINION

David
Puryear, Justice

A
unanimous jury found that the parental rights of appellant S.
B. ("Susan") should be terminated. The trial court
entered an order terminating her parental rights to her son
"Charles, " who was almost three at the time of
trial, [1] and Susan appealed. We reverse the trial
court's order and remand for further proceedings.

Peremptory
Challenges

In her
first issue, Susan complains that the trial court committed
reversible error when it gave a total of eight peremptory
strikes to the parties aligned against her-the Texas
Department of Family and Protective Services, Charles's
attorney ad litem, and intervenor "Mary." Because
we agree, we need not address Susan's second error
complaining about closing arguments.

Standard of Review

In a
civil case tried in a district court, each party is entitled
to six peremptory challenges. Tex.R.Civ.P. 233. If there are
multiple parties, the trial court must decide before
peremptory challenges are exercised whether the litigants
aligned on the same side are antagonistic with respect to
issues that will be submitted to the jury. Id. If
one of the litigants makes a motion before peremptory
challenges are exercised, the trial court must "equalize
the number of peremptory challenges so that no litigant or
side is given an unfair advantage as a result of the
alignment of the litigants and the award of peremptory
challenges." Id. Thus, the trial court must
determine whether the litigants aligned on one side are
antagonistic to each other as to fact issues for the jury; if
not, it should give each side the same number of challenges.
Garcia v. Central Power & Light Co., 704 S.W.2d
734, 736 (Tex. 1986); Van Allen v. Blackledge, 35
S.W.3d 61, 64 (Tex. App.-Houston [14th Dist.] 2000, pet.
denied). Whether aligned parties are antagonistic to each
other is a question of law that must be determined after voir
dire and before the parties exercise their strikes, based
upon information taken from the pleadings, pretrial
discovery, voir dire, and other information brought to the
court's attention. Garcia, 704 S.W.2d at 736-37;
In re M.N.G., 147 S.W.3d 521, 531 (Tex. App.-Fort
Worth 2004, pet. denied). If the record supports a conclusion
of antagonism between parties on one side, the trial court
must exercise its discretion and determine how to allocate
strikes among the parties. Patterson Dental Co. v.
Dunn, 592 S.W.2d 914, 919 (Tex. 1979); Moore v.
Altra Energy Techs., Inc., 321 S.W.3d 727, 741 (Tex.
App.-Houston [14th Dist.] 2010, pet. denied).

If we
determine that the trial court erred in concluding that there
was antagonism or in how it allocated the parties'
peremptory challenges, we must then determine, based on an
examination of the entire record, whether that error resulted
in a "materially unfair" trial. Garcia,
704 S.W.2d at 737; In re M.N.G., 147 S.W.3d at 533;
Van Allen, 35 S.W.3d at 66. "When the trial is
hotly contested and the evidence sharply conflicting, the
error results in a materially unfair trial without showing
more." Garcia, 704 S.W.2d at 737; see Lopez
v. Foremost Paving, Inc., 709 S.W.2d 643, 644 (Tex.
1986); Van Allen, 35 S.W.3d at 66. We also consider
the number of jury questions, whether the verdict was
unanimous, and whether there was a motion for summary
judgment or motion for instructed verdict. Lopez,
709 S.W.2d at 645 ("[T]he fact that the jury was
deadlocked at one point shows that the jury believed there
was a sharp conflict in the evidence and that the trial was
seriously contested."); Dunn, 592 S.W.2d at
921.

Was
there antagonism?

Aside
from pleadings filed by the Department and Susan, the only
other relevant document on file is Mary's petition in
intervention, in which she sought to be named sole managing
conservator, asserting that Susan had engaged in a history of
domestic violence and had abused or neglected Charles, but
did not pray for termination of Susan's parental rights.
In the first pretrial hearing, Susan raised the subject of
jury strikes, arguing that the Department, Mary, and
Charles's attorney ad litem were aligned and should share
their strikes. The attorney ad litem said, "I would
disagree with some of the alignment is there [sic]. So I
would think that we would each have a few that we could do
ourselves." The Department's attorney said, "I
feel like my position is not [aligned] with [Mary's]. I
don't know-I can foresee having differing avenues or
viewpoints with [Charles's attorney ad litem], but I can
understand the mother's concern; but [Mary] has not even
requested termination in her petition. I don't-I
don't think that we would be [aligned]." After the
hearing, Susan filed a motion asking the trial court to grant
six strikes total to the Department, Mary, and the attorney
ad litem, asserting that there was no antagonism between
those parties. In a second pretrial hearing, the Department
stated that although Mary had not requested termination and
had responded in discovery "that she was hoping that
[Susan] and her could work it out in the custody agreement,
" she had come to "share some sentiments of
termination; and so I would just defer to the court on
strikes." The trial court said it would take the matter
under advisement.

The day
of trial, before the potential jurors were called in for voir
dire, the trial court said it had decided to give Susan six
strikes, while "the ad litem, CPS, and the intervenor
will share eight. If you think that you cannot agree on your
eight, then I would give the ad litem and CPS four and the
intervenor four." The court and the attorneys moved on
to discuss how much time each party would have to present
their case. Asked whether she would need additional time to
present her case after the Department and Susan presented
their witnesses, Mary responded, "I think my case pretty
much tracks the same facts and witnesses as-as the case in
chief, " and later clarified that she might have three
additional witnesses if those individuals were not called by
the Department or Susan. The attorney ad litem answered the
same question by saying she might need an additional day or
two, depending on whether all of her witnesses were called
during the other parties' presentations. During that
discussion, the Department said, "I would note that for
the purposes of strike, I would agree that our aim is the
same. But I think for presentation of the case, it is wholly
different, " and went on to explain that the
Department's case had to do with "the services that
[Susan] completed and didn't complete, " whereas
Mary and the attorney ad litem had "a whole different
angle" to present. Susan then said, "We raised an
oral motion to equalize the strikes. And you've denied
that motion, correct?" The trial court responded,
"I granted it in part. I've equalized the strikes
from the standpoint of these folks don't get six
each." Shortly before voir dire, Susan re-urged her
motion, asserting that the other three parties were
"clearly aligned." The trial court denied
Susan's request.

The
Department's voir dire began with questions about how the
panelists felt about the Department. It explained its
conservatorship process and service plans, stated that it was
seeking the termination of Susan's parental rights, and
asked for the panelists' thoughts on what makes a good
parent and whether birth parents were preferable to adoptive
parents. As to best interest, the Department said that
"another attorney is going to tell you about 'best
interest.'" In her voir dire, Mary explained her
situation as an intervenor and asked about the panelists'
experiences with the Department, the foster-care system, and
the adoption process. She also asked what made someone a good
parent and whether the panelists thought a non-relative could
be good parent. Mary asked the panelists about abuse or
neglect and substance abuse, either their own or in others.
Finally, she asked whether any panelists could never
terminate parental rights. The attorney ad litem then
explained her role as guardian and attorney ad litem, saying
her task was to conduct an investigation and advocate for
Charles. She asked the panelists what factors should be
considered in looking at best interest and in assessing the
best placement for a child and asked how the panelists felt
about marihuana use by a parent. The clerk's record
contains one "Jury Panel" sheet for "State, Ad
Litem, [Mary], " showing their eight strikes. It is
unclear whether the attorney ad litem determined her own four
strikes or worked with the Department and Mary, but there
were no duplicate strikes made, and the record includes
indications that the parties conferred about their objections
to some panelists.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;We
cannot conclude that the record before the trial court at the
time it allocated strikes supports a conclusion that there
was any antagonism between the Department, Mary, and the
attorney ad litem. The Department and Mary agreed that they
were aligned in seeking termination of Susan&#39;s parental
rights. Although the attorney ad litem asserted at one point
that she had a "different angle" and asked for a
few strikes of her own, she did not explain how her view of
Charles&#39;s best interest was in any way antagonistic to
the Department or Mary. Cf. In re P.A., No.
02-03-00277-CV, 2004 WL 2365039, at *2-3 (Tex. App.-Fort
Worth Oct. 21, 2004, pet. denied) (mem. op.) (discussing
evidence of possible antagonism between attorney ad litem and
Department). We conclude, as a matter of law, that the record
does not contain evidence of antagonism between the attorney
ad litem, Mary, or the Department on any issue submitted to
the jury. See Dunn, 592 S.W.2d at 918, 921
("antagonism must exist on an issue of fact that will be
submitted to the jury, not on a matter that constitutes a
pure ...

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